State v. McNair

• Decision Date: 08 April 1992
• Docket Number: No. 23487-KA,23487-KA
• Citation: 597 So.2d 1096
• Parties: STATE of Louisiana, Appellee, v. Johnny McNAIR, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1096

597 So.2d 1096

STATE of Louisiana, Appellee, v. Johnny McNAIR, Appellant.

No. 23487-KA.

Court of Appeal of Louisiana Second Circuit.

April 8, 1992.

John Michael McDonald, Shreveport, for appellant.

Richard Ieyoub, Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Dan Keele, Tommy J. Johnson, Asst. Dist. Atty., Shreveport, for appellee.

Before MARVIN, VICTORY and BROWN, JJ.

VICTORY, Judge.

Defendant, Johnny McNair, was charged with possession of cocaine with intent to distribute, in violation of LSA-R.S. 40:967(A)(1). He was subsequently convicted of attempted possession with intent to distribute by a twelve person jury. The trial court sentenced him to the maximum term of 15 years at hard labor. Defendant appeals his conviction and sentence asserting 14 assignments of error. We affirm both the conviction and sentence.

FACTS

The Shreveport police received information on March 9, 1989 that cocaine was being sold from 3829 Jackson Street. Using a confidential informant, a controlled purchase was conducted at the residence. The informant entered the house and, using marked money, bought a rock of cocaine from two men in the house.

The police obtained and executed a search warrant approximately three hours later. Upon entering the house, the officers heard people running and one caught a glimpse of a man entering the bathroom. While yelling at them to stop, the officers heard the toilet flush. Once entering the bathroom, the officers saw two men standing over the toilet in which U.S. currency was swirling. The currency, some of which was seized, was the marked money used in the earlier controlled purchase. The police also found two loaded semi-automatic weapons, a Tech 9 and a Colt .45, in the living room, a razor blade and one rock of cocaine in the bathroom, a rock of cocaine in the bedroom, and approximately 50 rocks of cocaine behind the television.

The men gave their names as Roderick George and Chris Jackson. It was stipulated at trial that Roderick George later pled guilty to attempted possession of cocaine with intent to distribute. Chris Jackson, who was later discovered to be the defendant, Johnny McNair, claimed to be from Oklahoma. The police department ultimately determined that McNair was from Los Angeles, California.

Following a trial by jury, defendant was convicted and sentenced to the maximum term permissible for attempted possession of cocaine with intent to distribute, 15 years, and this appeal followed.

DISCUSSION

Assignments Nos. 1 and 2

In these assignments, defendant argues the trial court erred in overruling his objections during Officer Shannon's testimony. When Officer Shannon was asked how he initially made contact with defendant, he stated, "We had received information that crack cocaine was being sold from the residence." Defense counsel objected on the grounds of lack of foundation (assignment no. 1) and hearsay (assignment no. 2).

When a law enforcement officer testifies concerning events leading to the arrest of a defendant, statements made to him by others during the course of the investigation are not hearsay, if they are not offered for the truth of the matter asserted, but merely to explain events leading to the arrest of the defendant. State v. Morris, 521 So.2d 1214 (La.App.2d Cir.1988), writ denied, 530 So.2d 80 (La.1988).

Information received by a police officer during an investigation frequently has an impermissible hearsay aspect as well as a permissible nonhearsay aspect. When such information is used at trial, the issue of relevancy becomes significantly interrelated with the hearsay issue. In determining admissibility, the court should balance the need for the evidence against the danger of improper use by the jury. McCormick on Evidence, Sec. 249 (E. Cleary 3d ed.1984); State v. Wille, 559 So.2d 1321 (La.1990). According to the Louisiana Supreme Court, in State v. Wille, supra at 1331:

If the nonhearsay content of the statement has little or no relevance, then the statement should generally be excluded on both relevance and hearsay grounds. Marginally relevant nonhearsay evidence should not be used as a vehicle to permit the introduction of highly relevant and highly prejudicial hearsay evidence which consists of the substance of an out-of-court assertion that was not made under oath and is not subject to cross-examination at trial.

Since Officer Shannon's testimony was offered at a trial, as opposed to a motion to suppress hearing, the propriety of his actions during the investigation was not at issue. The explanation of why Shannon focused on the Jackson Street residence has only marginal relevance to the nature of defendant's charges. Considering the possible prejudice of this evidence of another crime, the statement should have been excluded as hearsay and irrelevant.

Nevertheless, the conviction need not be reversed if, on appeal, the court finds beyond a reasonable doubt that the statement did not contribute to the verdict. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Griffin, 568 So.2d 198 (La.App.2d Cir.1990). It is clear from the record that the prosecutor did not elicit this hearsay testimony- ; Shannon's testimony was not responsive to the question asked. Shannon's statement did not link defendant to drug distribution at 3829 Jackson Street, did not give any details of the drug operation, and did not state when cocaine had been sold out of the residence. Furthermore, the defendant was not shown to have owned or even resided at 3824 Jackson Street at any time, nor was he shown to have been present there at the unspecified date referred to in Shannon's statement. Under these circumstances, we find the admission of Shannon's statement harmless error beyond a reasonable doubt.

Assignment No. 3

Defendant claims the trial court erred in sustaining the state's objections to questions concerning the dismissal of Officer McKeaver from the Shreveport Police Department. Defense counsel asked Shannon several times whether Officer McKeaver, a member of the entry team, was still with the police department. The trial court sustained each objection on grounds of relevancy and lack of foundation. When defense counsel asked Shannon if McKeaver had been involved in other investigations, the court sustained another objection on grounds of relevancy.

On appeal, counsel claims he was trying to determine whether McKeaver had been dismissed from the police department for planting evidence. However, he failed to explain this basis for inquiry on the record. According to LSA-C.E. Art. 103, error may not be predicated upon a ruling excluding evidence, unless the substance of the evidence was made known to the court by counsel. In brief only, defendant argues that if his guess was correct there is a potential that all evidence obtained against the defendant is tainted.

Defense counsel did not establish his claimed purpose or relevancy during trial and has not shown any prejudice or error on appeal. Because defense counsel made no offer of proof, we know little of his theory of relevancy. Generally, evidence of other wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. LSA-C.E. Art. 404(B)(1). Because defendant failed to establish a specific independent relevance (i.e., motive, opportunity, intent, etc.) for introducing evidence of McKeaver's character, defendant's line of questioning was properly excluded.

Defendant's argument on appeal is mere speculation and is contradicted by Officer Shannon's testimony that no one planted any drugs, weapons, or money during the investigation of this case. Because a trial judge is vested with wide discretion in determining relevancy of evidence, his ruling will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981). For these reasons, this assignment is without merit.

Assignments Nos. 4, 5, 6, and 7

Defense counsel argues the trial court erred in overruling objections to the admission of various items of evidence, specifically a Tech 9 semi-automatic pistol (S-3), a Colt .45 semi-automatic pistol (S-4), the clip for the Tech 9 (S-5), the clip for the Colt .45 (S-6), photographs of the weapons (S-7, S-8), a photo of a rock of cocaine (S-9), photos of the floor with several rocks of cocaine (S-10, S-11), an evidence bag (S-12), a bag containing several rocks of cocaine (S-13), a bag containing one rock of cocaine (S-14), and a piece of foil which contained rocks of cocaine (S-15).

Although defense counsel did not object to the admission of S-7 through S-15 during the trial, he assigns as error no. 6 the admission of S-3 through S-15 "over objection." An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. State v. Jackson, 523 So.2d 251 (La.App.2d Cir.1988), writ denied, 530 So.2d 565 (La.1988); LSA-C.Cr.P. Art. 841. Because defense counsel failed to object to the introduction of S-7 through S-15, we will not consider this contention of error on appeal.

Assignment no. 7 is a restatement of defense counsel's objection to the introduction of S-3 through S-6, which were filed into evidence prior to the objection. The grounds for this belated objection were prejudice and lack of foundation.

Officer Shannon testified weapons are commonly associated with drug operations for security reasons. Thus, the weapons, including their clips and ammunition, were relevant to show that a drug distribution operation was in effect at the time and location of defendant's arrest. Defendant was charged with possession with intent to distribute. The weapons obviously were introduced to attempt to show defendant's intention to protect the cocaine, the proceeds of sale, and the entire drug operation. Finding no abuse of discretion and no showing of undue prejudice, these assignments lack...